Over the past 30 years, the Michigan legislature has enacted several tort reform laws affecting medical malpractice, wrongful death and other personal injury cases.
The goals of these reform laws, and particularly those relating to medical liability claims, are to ensure the affordability of healthcare, lower the cost of professional liability insurance, protect physicians from liability abuse, and minimize defensive medicine. Notwithstanding these goals, tort reform continues to remain a hotly contested legal issue.
On November 13, 2024, Michigan Representative Carrie Rheingans introduced two legislative bills in the Michigan House of Representatives that, if enacted, would significantly modify the tort reforms for medical malpractice and wrongful death actions that have been in place for decades. This article provides an overview of each of the legislative bills.
House Bill 6085—Proposed Changes to Noneconomic Damages Caps for Medical Malpractice Claims
House Bill 6085 proposes to revise and expand the noneconomic damages awards (e.g., pain and suffering, loss of companionship, etc.) that are recoverable by a plaintiff for claims alleging medical malpractice, as follows:
- The cap on the amount of noneconomic damages recoverable by a plaintiff alleging medical malpractice when an exception does not apply would increase from $280,000 to $1,000,000, subject to an annual adjustment;
- When an exception does apply, the noneconomic damages cap would increase from $500,000 to $3,000,000, subject to an annual adjustment;
- HB 6085 proposes to expand the exceptions that would allow for recovery of the higher damages cap to include the following circumstances:
- (REVISED) The plaintiff is functionally hemiplegic, paraplegic, or quadriplegic or suffers from functional loss of 1 or more limbs (presently, this exception is limited to total permanent functional loss of 1 or more limbs caused by injury to the brain or spinal cord);
- (REVISED) The plaintiff has permanently impaired cognitive capacity or is permanently incapable of independently performing the activities of normal, daily living (currently, this exception requires both circumstances to apply and further requires the plaintiff be incapable of making independent, responsible life decisions);
- (REVISED) There has been permanent loss of or damage to a reproductive organ (currently, this exception additionally requires that the plaintiff be unable to procreate); or
- (NEW) The plaintiff died or suffered permanent injury, substantial disfigurement or serious impairment of an important body function.
- As proposed, the applicable noneconomic damages caps would be applied to each plaintiff against each defendant. Currently, the noneconomic damages caps apply to all plaintiffs from all defendants.
- HB 6085 proposes to eliminate all noneconomic damages caps if a trier of fact determines by a preponderance of the evidence that any of the following exist:
- The conduct of a defendant amounts to gross negligence, intentional misconduct, fraudulent conduct, or reckless disregard for the rights of others;
- A defendant falsified, destroyed, concealed, or altered the medical records relating to the claim or conduct at issue;
- A defendant was under the influence of alcohol, drugs, or other intoxicant or stimulant relating to the claim or conduct at issue;
- A defendant has previously settled or been found liable for a claim of medical malpractice; or
- A defendant fails to obtain professional liability insurance coverage.
House Bill 6086—Proposed Changes to Wrongful Death Act Damages
Currently, Michigan law limits the types of damages that are recoverable by a plaintiff for wrongful death to (1) reasonable medical, hospital, funeral and burial expenses for which the estate is liable; (2) reasonable compensation for pain and suffering, while conscious, undergone by the deceased during the period between the time of injury and death; and (3) damages for the loss of financial support and the loss of society and companionship of the deceased.
As proposed, HB 6086 would expand the damages recoverable to additionally include the following:
- Damages for the deceased’s lost earning capacity;
- If the deceased was an unemancipated minor, damages for loss of earning capacity the deceased would have sustained after reaching the age of 14; and
- Damages for the loss of the deceased’s household services.
HB 6086 clarifies that the proposed amendments set forth in the bill are intended to correct the Michigan Supreme Court’s recent decision in Daher v Prime Healthcare Services-Garden City, LLC, which held that Michigan’s Wrongful Death Act does not permit recovery of lost future earnings.
Potential Impact of Legislation
If enacted, HB 6085 and HB 6086 would likely significantly increase the cost of professional liability insurance premiums to ensure physicians are adequately insured. These higher costs would particularly be experienced by surgical and other higher-risk specialties which generally experience a higher rate of malpractice claims, as well as physicians with a history of one or more malpractice settlements or judgments (claims against these physicians would not be subject to a noneconomic damages cap). Similarly, HB 6085 and HB 6086 would likely increase the burden on the judicial system due to increased discovery and litigation related to the exceptions or exclusions to the noneconomic damages caps for medical malpractice claims, as well as calculating lost earning capacity for decedents.
Both HB 6085 and HB 6086 have been referred to the House Judiciary Committee.
This article originally appeared in the Fourth Quarter 2024 edition of the Detroit Legal News. Republished With Permission.
